Citation NR: 9633584
Decision Date: 11/26/96 Archive Date: 12/02/96
DOCKET NO. 95-22 013 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Portland,
Oregon
THE ISSUES
1. Entitlement to service connection for diabetic
retinopathy as secondary to the veteran's service-connected
diabetes mellitus.
2. Entitlement to service connection for diabetic renal
disease as secondary to the veteran's service-connected
diabetes mellitus.
3. Whether new and material evidence has been received to
reopen the claim for service connection for post-traumatic
stress disorder.
4. Entitlement to service connection for a depressive
disorder.
5. Entitlement to an increased rating for diabetes mellitus,
currently evaluated as 40 percent disabling.
6. Entitlement to an increased rating for right lower
extremity peripheral neuropathy, currently evaluated as 10
percent disabling.
7. Entitlement to an increased rating for left lower
extremity peripheral neuropathy, currently evaluated as 10
percent disabling.
REPRESENTATION
Appellant represented by: Oregon Department of Veterans'
Affairs
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
C. Lawson, Counsel
INTRODUCTION
The veteran served on active duty from August 1967 to April
1978. He was awarded the Air Medal and his DD Form 214 lists
his military occupational specialties as helicopter technical
inspector and helicopter repairman. He engaged in the latter
specialty from July 1968 to July 1969, which was the period
of his tour of Vietnam, according to his service personnel
records.
In October 1989, the Board of Veterans' Appeals (Board)
denied service connection for a post-traumatic stress
disorder (PTSD). That decision is final. 38 U.S.C.A.
§ 7103(a) (West 1991).
This matter is on appeal to the Board from a March 1995
rating decision of the Department of Veterans Affairs (VA)
Portland, Oregon, Regional Office (RO). Several issues are
the subject of a remand section of this decision. The Board
notes that the RO had characterized the issues regarding
service connection for kidney and eye disorders as being
entitlement to service connection for reduced kidney function
as secondary to the service-connected diabetes mellitus, and
service connection for diabetic ocular disturbance as
secondary to the service-connected diabetes mellitus. The
Board has characterized the issues as shown on the cover
page.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that service connection is warranted for
diabetic retinopathy, because the medical evidence shows it
is secondary to his service-connected diabetes mellitus. He
also asserts that new and material evidence has been received
to reopen the claim for service connection for PTSD.
Consideration of the benefit of the doubt doctrine is also
requested.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims files. Based on its review of the relevant evidence
in this matter, and for the following reasons and bases, it
is the decision of the Board that the evidence is in favor of
service connection for diabetic retinopathy, and that the
claim for service connection for PTSD must be reopened based
upon new and material evidence.
FINDINGS OF FACT
1. The veteran is service-connected for diabetes mellitus.
2. The competent medical evidence shows that diabetic
retinopathy, which is manifested by microaneurysms and hard
exudates, developed secondary to service-connected for
diabetes mellitus.
3. The evidence added to the record since the Board denied
service connection for PTSD in October 1989 includes medical
evidence showing a clear diagnosis of PTSD and competent
opinions relating that diagnosis to stressors experienced
during active service; this evidence presents a reasonable
possibility of changing the outcome of the prior final
decision.
CONCLUSIONS OF LAW
1. Diabetic retinopathy was proximately due to or the result
of the veteran's service-connected diabetes mellitus.
38 C.F.R. § 3.310(a) (1995).
2. The claim for service connection for PTSD is reopened
based upon new and material evidence. 38 U.S.C.A. § 5108
(West 1991); 38 C.F.R. § 3.156(a) (1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Diabetic retinopathy
The Board concludes that the veteran has submitted a well
grounded claim for diabetic retinopathy based on the medical
evidence and the statements in support of the claim. The
Board also finds the VA has fulfilled its duty to assist the
veteran with respect to this issue pursuant to 38
U.S.C.A. § 5107 (West 1991). The Board concludes that all
necessary evidence for a fair and impartial determination of
his claim is of record. Accordingly, the claim may be
discussed on the merits.
In January 1988, the Board granted service connection for
diabetes mellitus. The RO implemented that determination in
a February 1988 rating decision and assigned a 20 percent
rating, effective December 12, 1984. In June 1992, the RO
increased that rating to 40 percent, effective July 17, 1991.
The RO also granted service connection for right and left
lower extremity peripheral neuropathy as secondary to the
veteran's service-connected diabetes mellitus and assigned 10
percent ratings, effective July 17, 1991.
On VA ophthalmology examination in December 1994, the
examiner noted the veteran had been followed at a private
medical clinic for his eyes, his vision occasionally
fluctuated and the veteran was taking no eye medications.
The examiner noted the veteran’s medical history of insulin-
dependent diabetes. Examination of the retinae showed a few
microaneurysms and hard exudates in the posterior poles of
both eyes. The clinical impressions included mild background
diabetic retinopathy.
“Diabetic retinopathy” is defined as retinopathy associated
with diabetes mellitus, which may be of the background type,
progressively characterized by exudates and microaneurysms.
Dorland’s Illustrated Medical Dictionary, p. 1455 (28th ed.
1994).
Service connection may be granted for disability as a result
of disease or injury incurred in or aggravated by active
duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303.
Service connection may also be granted for chronic disability
diagnosed subsequent to service when all the evidence
including that pertinent to service, establishes that the
disease was incurred in service. 38 C.F.R. § 3.303(d).
Finally, service connection may be granted for disability
which is proximately due to or the result of service-
connected disease or injury. 38 C.F.R. § 3.310(a).
The only medical evidence pertaining to this issue shows a
diagnosis of mild background diabetic retinopathy which is
supported by clinical findings that resulted in the
diagnosis. While the examiner did not specifically relate
the diagnosis to diabetes mellitus, it is evident from that
opinion since the evidence shows that examination was
conducted for the purpose of determining whether the veteran
had an eye disorder secondary to diabetes mellitus. The
Board concludes that diabetic retinopathy is proximately due
to service-connected diabetes mellitus.
II. PTSD
In October 1989, the Board denied service connection for
PTSD, based on the evidence then of record. That decision is
final. 38 U.S.C.A. § 7103(a).
If new and material evidence is presented or secured with
respect to a claim which has been disallowed, the Secretary
shall reopen the claim and review the former disposition of
the claim. 38 U.S.C.A. § 5108. “New and material evidence”
means evidence not previously submitted to agency decision
makers which bears directly and substantially upon the
specific matter under consideration, which is neither
cumulative nor redundant, and which by itself or in
connection with evidence previously assembled is so
significant that it must be considered in order to fairly
decide the merits of the claim. 38 C.F.R. § 3.156(a). The
newly presented evidence need not be probative of all
elements required to award the claim, but need be probative
only as to each element that was a specified basis for the
last disallowance. Evans v. Brown, 9 Vet.App. 273, 284
(1996). In order to justify reopening a claim of service
connection on the basis of new and material evidence, there
must be a reasonable possibility that the new evidence
presented, when viewed in the context of all the evidence,
both old and new, would change the outcome.
Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). In
determining the issue of whether the additional evidence
submitted is new and material, a question of law, the
credibility of the evidence must be presumed for the purpose
of determining whether the case should be reopened. Justus
v. Principi, 3 Vet.App. 510, 512-513 (1992).
The evidence of record at the time of the Board's decision
included a VA medical examination report stating the veteran
probably did not have PTSD and private medical evidence
diagnosing PTSD secondary to experiences in Vietnam. The
earliest clinical evidence of record concerning the nature of
the veteran's psychiatric disability is dated in April 1985.
A VA psychiatric examination report states the veteran did
not strictly meet the criteria for PTSD. Another VA
psychiatric examination report diagnosed a passive-aggressive
personality disorder. The examiner opined the veteran did
not have PTSD regardless of his inservice experiences. There
was also a VA social worker’s report doubting the veteran had
PTSD. A May 1986 Vet Center treatment note apparently from a
social worker states the veteran had all the standard
symptomatology of PTSD. An April 1987 letter from R. Schiff,
Ph.D., reported symptoms the veteran had expressed in March
1987, described clinical findings, and included the opinion
that the veteran had PTSD that was related to his army
experience. A September 1988 U.S. Army and Joint Services
Environmental Support Group (ESG) letter with attachments
addresses the stressors claimed by the veteran while assigned
to the 11th Aviation Group & Company.
Based on the evidence, the Board found that a psychiatric
disorder was not present during active service and the
evidence did not establish a clear diagnosis of PTSD, but
showed the veteran had a personality disorder for which
service connection was not available under
38 C.F.R. § 3.303(c).
The evidence added to the record includes additional VA and
private medical evidence. A January 1995 VA report of
psychiatric examination for PTSD does not include a diagnosis
of PTSD. It lists the diagnoses as major depressive disorder
and personality disorder not otherwise specified. A November
1993 private medical assessment states the veteran continues
to have PTSD. A December 1993 private medical report states
the veteran has PTSD and long-term dysthymia that are
attributable to the veteran’s Vietnam war experiences. A
June 1995 report from the same examiner states the veteran
presents with fairly classic symptoms of PTSD, which the
examiner again relates to Vietnam war experiences.
This evidence is new since it shows a clear medical diagnosis
of PTSD. It is also probative and relevant to the issue
since it relates the diagnosis to exposure to stressors
during active duty in Vietnam. When considered in connection
with all the evidence it raises a reasonable possibility of
changing the outcome. Colvin, 1 Vet.App. at 174. Since the
validity of the diagnosis was the prior basis for the Board’s
October 1989 denial, the additional medical evidence is
probative as to the element that was a specified basis for
the last disallowance. Evans, 9 Vet.App. at 284. Without
deciding the probative weight attributable to the additional
evidence, it is new and material evidence.
38 C.F.R. § 3.156(a).
ORDER
Service connection is granted for diabetic retinopathy as
secondary to the veteran's service-connected diabetes
mellitus.
New and material evidence having been submitted; the
veteran’s claim for service connection for PTSD is reopened.
REMAND
Since the RO's latest rating decision on the issue of an
increased rating for diabetes mellitus, service connection
has been granted for diabetic retinopathy (in this Board
decision), and there has been a change to the rating schedule
concerning endocrine disorders which warrants a remand for
initial RO consideration thereunder. See 61 Fed. Reg. 20440
et seq. (May 7, 1996). A VA examination is also necessary in
order to obtain additional information regarding the
impairment caused by the veteran’s service-connected
disability.
On VA examination in December 1994, the examiner diagnosed
diabetic renal disease. However, that diagnosis appears to
have been based solely on a medical history reported to the
examiner by the veteran without consideration of any prior
treatment records. Espiritu v. Derwinski, 2 Vet.App. 492,
494 (1992) (Court held that a witness must be competent in
order for his statements or testimony to be probative as to
the facts under consideration). The RO denied the claim
based upon the fact that symptoms of renal disease were not
found on examination, but it is not clear whether any
laboratory or other confirmatory tests were performed, or if
the addendum regarding laboratory reports was based upon
history provided by the veteran, since the laboratory reports
themselves are not of record. Additionally, the physician
indicated that an intravenous pyelogram and urology
evaluation were recommended to determine the cause of
hematuria. The Board notes that it is “incumbent upon the
rating board” to return an examination report to a physician
when the information it contains is inadequate for rating
purposes." 38 C.F.R. § 4.2 (1995); see Green v. Derwinski, 1
Vet.App. 121 (1991). Also, when an examiner recommends a
special study that is relevant to a claim, it must be
performed. Hyder v. Derwinski, 1 Vet.App. 241 (1991);
Abernathy v. Principi, 3 Vet.App. 461 (1992). Thus, another
VA examination will be ordered so that the veteran's claim
may be adequately evaluated.
In relationship to the veteran's claims for increased ratings
for his service-connected right and left lower extremity
peripheral neuropathy, the veteran has indicated that his
symptoms have increased in severity, and he has testified
that both of his legs are numb and that he has no reflexes
present in his knees or ankles. Transcript, p. 26 (Aug.
1995). Therefore, additional medical information is
necessary.
Regarding the claims for service connection for psychiatric
disorders, the Board notes that there is reference in the
claims folder to treatment over a long period of time for
psychiatric disability, and it appears that several actual
clinical records of treatment that the veteran received in
respect thereto are not contained in the claims folder.
Additional medical development is also necessary in light of
the conflicting diagnoses reported.
Accordingly, the case is REMANDED to the RO for the
following:
1. The RO should obtain all outstanding
medical treatment records for the
veteran’s psychiatric disability since
service discharge. This includes
records of Dr. Ruth Jennings, who is now
deceased, per the hearing testimony.
Tr., pp. 6-7. Additionally, all Vet
Center, VA and Kaiser Permanente
records, showing psychiatric treatment
records should be obtained. The RO
should also obtain recent VA and private
treatment records for diabetes and
peripheral neuropathy since 1993,
including Kaiser Permanente. The RO
should also obtain any VA and private
records showing treatment for renal
disease that are not already of record,
including those dated from 1993 to the
present.
2. The veteran should undergo VA
internal medicine and urology
examinations. The examiners should
review the veteran’s claims folder and
perform any necessary laboratory tests
to confirm or rule out diabetic renal
disease, and if diagnosed, whether it is
secondary to diabetes mellitus. The
internal medicine physician should
determine all impairment caused by the
veteran’s service-connected diabetes
mellitus. Please indicate whether or
not any additional diagnoses are
secondary to diabetes mellitus. Based
on a review of the evidence, please
indicate whether instances of
ketoacidosis or hypoglycemic reactions
have occurred and whether or not there
has been associated loss of weight and
strength or other complications.
3. The veteran should undergo a VA
psychiatric examination to determine the
nature and etiology of the veteran's
psychiatric impairment. The
psychiatrist should review the veteran's
claims folder and conduct any necessary
testing. Please specify why the veteran
does or does not have PTSD, major
depression, or dysthymia. If PTSD is
diagnosed, please specify each stressor
which supports the diagnosis. The RO
should conduct any additional
development necessary to confirm the
existence of any claimed noncombat
stressors if they form basis for the
diagnosis of PTSD.
4. The veteran should undergo a VA
neurology examination to determine the
impairment caused by the veteran’s
service-connected right and left lower
extremity peripheral neuropathy
disabilities. Any testing deemed
necessary should be conducted.
Specifically, for each lower extremity,
please describe the extent to which the
veteran's peripheral neuropathy causes
leg and foot muscle paralysis, foot
drop, droop of the first phalanges of
the toes, causalgia, inability to flex
or extend the toes or dorsiflex or
plantar flex the foot, lost abduction,
and weakened adduction, and the examiner
should grade the degree of paralysis
present as either mild incomplete
paralysis, moderate incomplete
paralysis, severe incomplete paralysis,
or complete paralysis, and indicate
which nerve(s) is/are involved.
5. After ensuring the above has been
accomplished, the RO should consider the
veteran's claim for an increased rating
for diabetes mellitus under both the old
rating criteria and the rating criteria
from 38 C.F.R. § 4.119, et seq., which
became effective June 6, 1996 (see 61
Fed. Reg. 20440) (May 7, 1996).
Additionally, RO should consider the
remaining issues on appeal, including
service connection for PTSD based on all
the evidence.
Thereafter, if any action remains adverse to the veteran, the
RO should issue the veteran and his representative a
Supplemental Statement of the Case and afford an appropriate
opportunity to respond. The case should then be returned to
this Board in accordance with the usual appellate procedures.
No action is required of the veteran until he is further
informed. The purpose of this REMAND is to assist the
veteran and to provide him with due process of law. No
inference is to be drawn regarding the final disposition of
the claims.
R. E. COPPOLA
Acting Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans’
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act, Pub.
L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date
that appears on the face of this decision constitutes the
date of mailing and the copy of this decision that you have
received is your notice of the action taken on your appeal by
the Board of Veterans’ Appeals. Appellate rights do not
attach to those issues addressed in the remand portion of the
Board’s decision, because a remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1995).
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